Helping employers avoid the storm of legal issues in the workplace

Clearing the Backlog – September

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my backlog for the month:

According to a Wall Street Journal article, a recent lawsuit seeks a declaration from the New York Department of Labor that putting a GPS tracker on an employee’s family car to uncover time sheet violations was a violation of the state constitution’s guarantee against unreasonable searches and seizures. According to the lawsuit, the monitoring continued during evenings, weekends and a family vacation. This won’t turn out well for the employer.

An Ohio appellate court has upheld a physician’s non-compete agreement that prohibited him from engaging in a hematology or oncology practice in his former employer’s "primary service area." This decision continues the Ohio trend of upholding physician non-competes and Ohio courts have repeatedly rejected the argument that covenants are not enforceable against physicians solely because they impair patients’ choice.

In Flagstaff Medical Center, the NLRB found that a hospital employer’s rule against photographing patients and/or hospital equipment , property or facilities was not overly broad. We quote the critical portion of the Board’s decision in this regard here:

We agree with the judge that FMC’s rule restricting photography of hospital property is not unlawfully over-broad as it does not have a reasonable tendency to interfere with Section 7 activities. Lutheran Heritage Vilage-Livonia, supra. First, FMC’s rule against photo-graphing hospital property does not expressly restrict Section 7 activity. Further, like the judge, and contrary to our dissenting colleague, we find that employees would not reasonably interpret the rule as restricting Section 7 activity. The privacy interests of hospital patients are weighty, and FMC has a significant interest in preventing the wrongful disclosure of individually identifiable health information, including by unauthorized photography. See, e.g., 42 U.S.C. § 1320d-6 (prohibiting wrongful disclosure of individually identifiable health information). Employees would reasonably interpret FMC’s rule as a legitimate means of protecting the privacy of patients and their hospital surroundings, not as a prohibition of protected activity. Finally, there is no evidence that FMC promulgated the rule in response to Section 7 activity or that FMC actually applied the rule to prohibit Section 7 activity. The General Counsel does not argue, much less establish, that any photography that predated the rule’s promulgation was protected by Section 7. Accordingly, we shall dismiss this allegation.

HB 335, which was introduced in the Ohio Legislature this week, would prohibit discrimination on the basis of sexual orientation or gender identity. A similar bill was introduced in the statehouse last May, but went nowhere.

On September 7th, the Sixth Circuit in Geronimo v. Caterpillar, Inc.upheld the plaintiff’s discharge pursuant to the employer’s policy requiring injury reports within 48 hours, despite the fact that Tennessee law provides an employee with 30 days to report injuries in order to preserve the rights to benefits. Ohio simply has a two-year statute of limitations for filing claims. Isn’t it time for Ohio to join other states in requiring more prompt injury reports? Doesn’t it make sense for Ohio employers to institute their own policies similar to Caterpillar’s?

Back in August, in Kapp v. Jewish Hospital, Judge Marbley of the U.S. District Court for the Southern District of Ohio addressed the interesting question, among others, of what happens when an employee takes contradictory positions regarding his ability to return to work in his claim for workers’ compensation benefits and his claim that the employer interfered with his rights under the FMLA.

On September 15th, the Ohio Supreme Court issued its decision in Dohme v. Eurand Am. Inc. in which it held that a plaintiff alleging that he was wrongfully discharged in violation of the state’s public policy favoring workplace safety must be able to point to a the state constitution or a state statute, regulation, or common law as the specific source of that policy.

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